United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Mag. Judge.
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS (ECF NO. 8)
LINDA V. PARKER U.S. DISTRICT JUDGE.
Plaintiff
Maha Saad (“Saad”) initiated this lawsuit
requesting the Court order the Consulate in South Africa to
make a determination on Saad's application for visas for
her two minor sons, Hamza and Yusuf Ahmed. (Compl., ECF No. 1
at 1-2, Pg. ID 1-2.) Defendants move to dismiss
Plaintiffs' request for a writ of mandamus pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing that the
Court lacks subject matter jurisdiction. (Dismiss Mot., ECF
No. 8 at 1, Pg. ID 68.)
The
motion has been fully briefed, and the Court is dispensing
with oral argument pursuant to Local Rule 7.1(f)(2). (ECF
Nos. 8-10.)
I.
Factual and Procedural Background
Saad is
a U.S. citizen and the mother of Hamza and Yusuf Ahmed, also
Plaintiffs in this action. (Pl. Resp., ECF No. 9 at 7, Pg. ID
95.) Hamza and Yusuf were born in Mozambique in 2010, and
currently they reside with their mother in South Africa.
(Id.) On June 6, 2014, the U.S. Citizenship and
Immigration Services (USCIS) approved Saad's two I-130
applications-petitions for alien relatives-on behalf of her
two sons, Hamza and Yusuf. (Pl. Resp. at 7, Pg. ID 95;
Dismiss Mot. at 8, Pg. ID 75.)
Plaintiffs
allege Hamza and Yusuf appeared for an interview at the U.S.
Consulate in Johannesburg, South Africa on April 12,
2016.[1] (Pl. Resp. at 7, Pg. ID 95.) Subsequent to
the interview, the Consular Office requested that the
immigrant visa applications be approved, asked for the
passports to be sent to the consulate, and placed immigrant
visas into the passports of Hamza and Yusuf. (Id.)
These visas were later voided. (Id.)
On May
16, 2016, the Consular Office emailed Saad informing her that
her sons' immigrant visa applications “are still
undergoing administrative processing in order to verify their
qualifications for the visas. Administrative processing often
lasts about 90 days, but in some instances, it can take
significantly longer.” (Pl. Exh. D, ECF No. 9-5 at 2,
Pg. ID 122.) On April 05, 2017, the Consular Office again
emailed Saad informing her that “some visa cases
require additional processing, the completion time for this
process cannot be determined. . . . The consulate is also
unable to waive or influence the amount of time that this
processing may take.” (Pl. Exh. E, ECF No. 9-6 at 2,
Pg. ID 124.) Plaintiffs claim that there has yet to be a
determination on Saad's two sons' immigrant visa
applications-and request this Court order the Consulate in
South Africa to make a determination. (Pl. Resp. at 10, Pg.
ID 98.)
II.
Subject Matter Jurisdiction
Defendants
contend that this Court lacks subject matter jurisdiction. A
motion under Rule 12(b)(1) to dismiss a complaint for lack of
subject matter jurisdiction must be considered prior to other
challenges since proper jurisdiction is a prerequisite to
determining the validity of a claim. See Gould v.
Pechiney Ugine Kulmann & Trefimetaux, 853 F.2d 445,
450 (6th Cir. 1988). Plaintiffs have the burden of proving
jurisdiction in order to survive the motion. Moir v.
Greater Cleveland Regional Transit Auth., 895 F.2d 266,
269 (6th Cir. 1990). “A Rule 12(b)(1) motion can either
attack the claim of jurisdiction on its face, in which case
all allegations of the plaintiff must be considered as true,
or it can attack the factual basis for jurisdiction, in which
case the trial court must weigh the evidence and the
plaintiff bears the burden of proving that jurisdiction
exists.” Abbott v. Michigan, 474 F.3d 324, 328
(6th Cir. 2007). Here, the Defendants lodge an attack on the
factual basis for jurisdiction; therefore, this Court must
weigh all the evidence and the burden of proof rests with
Plaintiffs.
Defendants
allege, providing a declaration in support from Chloe
Dybdahl, an attorney adviser in the Bureau of Consular
Affairs, that Hamza and Yusuf appeared for an interview at
the U.S. Consulate in Johannesburg, South Africa. (Dismiss
Mot. at 8, Pg. ID 75; Dybdahl Decl. ¶ 5, Pg. ID 88.) On
that same date[2], however, the consular refused their
immigrant visa applications pursuant to INA § 221(g), 8
U.S.C. § 1201(g), for administrative processing and a
request for additional information concerning visa
eligibility. (Dybdahl Decl. ¶ 5, Pg. ID 88.)
Additionally, the electronic Consular Consolidated Database
(“CCD”), which houses the records of immigrant
and nonimmigrant visas, reflects that, on June 26, 2018, the
consular requested information from Hamza and Yusuf's
father, Abess Ahmed. (Id.) As of October 18, 2018,
this request has not been fulfilled. (Id.)
In
opposing the Defendants' evidence, Plaintiffs argue that
Defendants have provided no proof of their allegations-except
the declaration under penalty of perjury from an attorney in
the Bureau of Consular Affairs. Considering all of the
evidence, this Court concludes that, subsequent to their
interviews, the immigrant visa applications for Hamza and
Yusuf were refused and placed in administrative processing in
order to verify their qualifications. That refusal was in
fact a determination by the Consular, regardless of the
additional information requested. See 22 C.F.R.
§ 42.81 (showing that a consular officer may continue to
consider information submitted after a refusal). Thereafter,
the father of Hamza and Yusuf was contacted for additional
information. Although Plaintiffs challenge the
Defendants' information, the reason for such challenge is
not compelling. As such, the Court has no reason to doubt the
accuracy or reliability of the records provided from the CCD.
(See Defs. Exh. 1, ECF No. 10-2; Defs. Exh. 2, ECF
No. 10-3; Defs. Exh. 3, ECF No. 10-4.) Hence, the Court
concludes that the Consular has not received the requested
information necessary to remove the visa applications from
administrative processing after having already been refused.
The
Consulate's determinations regarding immigrant visa
applications are generally not subject to judicial review or
interference. “[A]ny policy toward aliens is vitally
and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power,
and the maintenance of a republican form of government [and
s]uch matters are so exclusively entrusted to the political
branches of government as to be largely immune from
judicial inquiry or interference.” Harisiades
v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (emphasis
added); see U.S. ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 543 (1950) (“it is not within the province of
any court, unless expressly authorized by law, to review the
determination of the political branch of the Government to
exclude a given alien.”); Saavedra Bruno v.
Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999)
(“the doctrine [of consular non-reviewability] holds
that a consular official's decision to issue or withhold
a visa is not subject to judicial review, at least unless
Congress says otherwise.”); see also Cobble v. U.S.
State Dep't, 22 Fed.Appx. 574 (6th Cir. 2001)
(unpublished); El-Mahdy v. U.S. State Dep't, 25
Fed.Appx. 295, 296 (6th Cir. 2001) (“the federal courts
have consistently held that they cannot review the visa
decision of a consular office”).
The
very nature of Plaintiffs' request is to seek the
Court's review and intervention into a determination of
the Consular Office with regard to what Saad alleges as
pending immigrant visa applications. However, Defendants have
supplied this Court with sufficient evidence to demonstrate
that Plaintiffs' immigrant visa applications were
refused. (See Defs. Exh. 1, ECF No. 10-2; Defs. Exh.
2, ECF No. 10-3; Defs. Exh. 3, ECF No. 10-4.) Consequently,
the present circumstance by no means is an instance expressly
authorized by law, or an instance in which this Court deems
fit to intervene in the determination of the Consular Office.
Therefore, the Court concludes that judicial ...